Thursday, July 8, 2010
The New York Appellate Division for the Second Judicial Department found a triable case in a dispute over the return of a ring given in contemplation of marriage. The court set out the facts:
It is undisputed that, on or about September 10, 2006, the plaintiff gave the defendant a six-carat diamond ring, which he purchased for the sum of $100,000. Thereafter, on September 20, 2006, the parties participated in an Orthodox Jewish wedding ceremony as bride and groom. Prior to that ceremony, they executed a prenuptial agreement reciting, among other things, that the plaintiff would deposit the sum of $300,000 in a joint bank account to pay for their expenses, that the parties would retain their separate property, and that, in the event of a divorce sought by either party, the plaintiff would pay to the defendant a lump sum ranging from $525,000 to $3,000,000, depending upon the length of the marriage.
At the time of the religious wedding ceremony, the defendant was still legally married to another man, although she had obtained a "get" on July 30, 2002. She did not obtain a final judgment of civil divorce from her former husband until December 27, 2007. Prior to that date, however, the parties had separated and were no longer living as a couple.
The putative husband filed a lawsuit sounding in replevin and fraud. The court here concluded that he was not entitled to summary judgment:
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by averring in his affidavit that he gave the ring to the defendant in contemplation of their valid and binding marriage and that, unbeknownst to him, the defendant was still legally married to another man and could not validly marry him. However, contrary to the Supreme Court's determination, the defendant raised a triable issue of fact by submitting her own affidavit and that of her matrimonial attorney, asserting that, at the time the plaintiff discussed marriage with the defendant and presented her with the ring, the plaintiff was well aware of her marital status, and even participated indirectly in her divorce proceedings. While the Supreme Court correctly observed that the opposing affidavits did not identify the precise dates of the plaintiff's participation in the defendant's divorce proceedings, the affidavits clearly alleged that the plaintiff knew of the defendant's existing marriage before he gave the defendant the ring. The defendant further claimed in her affidavit that the plaintiff presented her with the ring not in contemplation of a legally valid civil marriage, but in contemplation of a religious wedding ceremony. She claimed that he was only concerned that the defendant obtain a religious divorce, and that he did not care about a civil divorce. The conflicting affidavits presented a stark credibility question, which the Supreme Court summarily and impermissibly resolved in the plaintiff's favor. "A court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned'" Here, there is no basis to conclude that the issues presented are not genuine. Accordingly, in light of the existence of these triable issues of fact, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action and left for trial the resolution of issues of credibilit (citations omitted).
Since there remains a triable issue of fact as to whether the plaintiff knew of an impediment to the proposed marriage at the time he gave the defendant the diamond ring, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action. Accordingly, the order is reversed, on the law, that branch of the plaintiff's motion which was for summary judgment on the first cause of action is denied, and the provision directing the defendant to return the diamond ring to the plaintiff is vacated.